(dissenting).
I am unable to agree with the decision of the majority of my associates holding the anti-nepotism statute unconstitutional. Although I gravely question the wisdom of the action of the last regular session of the Legislature in extending the reach of the statute so as to include plaintiffs and those similarly situated, I find no interference with any vested rights of such class by virtue of its enactment. The authorities cited in the special concurrence of Mr. Chief Justice Wolfe amply support the rule laid down in Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 127, 48 L.Ed. 148, that “it belongs to the state, as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf”. It is conceded that, absent any legislative interdiction, each of the Board of Education here indirectly involved might legally, in its discretion, refuse to employ or to retain in employment any applicant or teacher for whatever reason its judgment might dictate, unless, if conceivable, some personal right of the teacher be violated. It follows, I submit, that should such Board adopt a policy of not employing or retaining in employment any one related to a member of -.such Board within a stated degree of consanguinity, it could not be successfully contended that by refusing to continue in employment a person so related, who had long tenure as a teacher in such district and whose work had proved satisfactory, was thereby deprived of a property right. If this be so, it is difficult for me to see how a statute which precludes the Board from doing so has such effect.
Nor do I believe that the fact that each of the plaintiffs is a member of a local retirement association and has had periodically deducted from his salary a contribution to the retirement fund results in the statute being unconstitutional as applied to him. It is conceded in the opinion of the Chief Justice that should the Board of Education refuse to renew the contract of a teacher, no property right of such teacher is thereby violated though he has made contributions to the retirement fund and despite the fact that he may not, under the terms of the retirement law, withdraw such contributions. If this be true, the same reasoning applies to the contention that because of contributions made to the retirement fund, application of the statute to such contributor divests him of a property right, as applies to such asserted right ac*169quired by reason of long tenure and satisfactory work. Should the Board, in the example given above, refuse to continue a teacher in employment because of his close blood relationship to a member of the Board, it would no more divest such teacher of a vested right than such refusal based on an asserted personality defect or disagreement with a policy of the Board. And this is so because concededly a promulgation against nepotism may legally be made in furtherance of the public interest. It follows that a law which is enacted in furtherance of the policy which prohibits such employment is no more assailable than a resolution of the Board to the same effect.
The relief prayed for in the petition of each plaintiff should, in my opinion, be denied.